28:0172(27)RO - HFE VS NAVY, NAVAL SHIPYARD, PEARL HARBOR



[ v28 p172 ]
28:0172(27)RO
The decision of the Authority follows:


28 FLRA NO. 27

DEPARTMENT OF THE NAVY
PEARL HARBOR NAVAL SHIPYARD
RESTAURANT SYSTEM
PEARL HARBOR, HAWAII

              Activity

         and

SERVICE EMPLOYEES INTERNATIONAL
UNION, LOCAL 556, AFL-CIO

              Union/Petitioner

         and

HAWAII FEDERAL EMPLOYEES METAL
TRADES COUNCIL

              Union/Incumbent

Case No. 98-RO-60012

ORDER DENYING APPLICATION FOR REVIEW

I. Statement of the Case

This case is before the Authority on an application filed by the Service Employees International Union, Local 556, AFL - CIO (SEIU) under section 2422.17(a) of the Authority's Rules and Regulations, seeking review of the Regional Director's Decision and Order. The Hawaii Federal Employees Metal Trades Council (HFEMTC) and the Metal Trades Council (MTC) filed oppositions to the application.

II. Background

On June 16, 1986, the SEIU filed a petition seeking an election in a unit of all non-supervisory employees of the Pearl Harbor Naval Shipyard Restaurant System (the Activity). The record indicates that since August 6, 1965, the HFEMTC has been recognized as the exclusive representative of the employees. The Activity and the HFEMTC have been parties to a series of collective bargaining agreements covering the employees in the petitioned-for unit. The most recent agreement was negotiated for a 3-year term, with an effective date of October 26, 1982. prior to the October 25, 1985 expiration date, the parties extended the agreement to October 26, 1986. SEIU is a constituent local of the HFEMTC, acts as administrator of HFEMTC's collective bargaining agreement with the Activity, and is responsible for the representation of the employees in the petitioned-for unit.

SEIU contended that it was entitled to file a petition for exclusive recognition of the unit during the extended term of the HFEMTC-Activity agreement and outside the open period provided for the filing of such a petition in section 7111(f)(3) of the Federal Service Labor - Management Relations Statute (the Statute). In support of its contention, the SEIU asserted that a schism between itself and the HFEMTC existed. As evidence of the asserted schism, the SEIU argued that it was involved in a dispute over the amount of per capita dues it owes the HFEMTC, and another dispute over a HFEMTC requirement that constituents provide monthly listings of members who have tendered dues to the locals. SEIU also expressed a general dissatisfaction with the unit representation arrangement between itself, HFEMTC and the Activity. Additionally, the SEIU argued that because the HFEMTC could designate members of a board appointed by the Shipyard Commander to operate the restaurant system, there was a conflict between the interests of HFEMTC and the interests of the unit employees.

III. Regional Director's Decision

The Regional Director rejected the SEIU's contention that it was entitled to file a petition during the term of the collective bargaining agreement. In addressing the SEIU's assertion that a schism existed, the Regional Director noted the absence of Federal sector decisions on the subject and looked to decisions of the National Labor Relations Board in the private sector. He found that while the Board has held that in certain situations a negotiated agreement does not act as a bar to a representation petition where a schism exists, the existence of a schism depends on two conditions: (1) a basic intra-union conflict over fundamental policy questions within the highest level of an international union or federation; and (2) the conflict causes employees in the local unit to take action, based on the conflict itself, which creates such confusion in the bargaining relationship that stability can only be restored through an election. Hershey Chocolate Corp., 121 NLRB 901 (1958), 42 LRRM 1460.   Additionally, the Regional Director noted private sector case law, where the continuity of a bargaining relationship remains unbroken, no schism is found where a union changes affiliation from one international or federation to another. Rather, in such circumstances, the petitioning faction or union has been held to be in a position